Kelby R. Gordon v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CM-594

KELBY R. GORDON, APPELLANT,

v.

UNITED STATES, APPELLEE,

Appeal from the Superior Court

of the District of Columbia

(CMD-3449-13)

(Hon. Harold Cushenberry, Jr., Trial Judge)

(Argued December 16, 2014 Decided July 23, 2015)

Anna B. Scanlon for appellant.

Vanessa Goodwin, Assistant United States Attorney, with whom Ronald C.

Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth

Trosman, John P. Mannarino, Kondi Kleinman, and Erik H. Zwicker, Assistant

United States Attorneys, were on the brief, for appellee.

Before BECKWITH and MCLEESE, Associate Judges, and FERREN, Senior

Judge.

FERREN, Senior Judge: Kelby R. Gordon appeals his conviction for

2

possession of marijuana following a conditional guilty plea.1 On appeal, Gordon

argues that he was unlawfully “seized” when police officers, without reasonable

articulable suspicion,2 repeatedly questioned him about his identity for “about ten

minutes.” As a result, he argues, his statements to the police and the tangible

evidence found on his person should have been suppressed. We agree with

Gordon and reverse.

I.

On March 5, 2013, Metropolitan Police Department Officer Marboo

Whisnant, accompanied by three fellow officers in the Robbery Unit, “saw a group

of guys loitering in the hallway” of an apartment building in Southeast

Washington, D.C. The officers pulled up to the building in an unmarked police

vehicle, without flashing lights. Wearing plain clothes with black tactical vests

that displayed “Police” on the front and back, the officers carried handcuffs, a

baton, pepper spray, and a gun, and entered the building through an unlocked front

door.

1

A conditional guilty plea may be withdrawn if this court rules that the trial

court erroneously denied a specified pretrial motion, in this case a motion to

suppress evidence. See Super. Ct. Crim. R. 11 (a)(2).

2

Terry v. Ohio, 392 U.S. 1, 30 (1968).

3

Officer Whisnant described the main landing where the police entered as “a

little square area,” and Gordon’s defense investigator described it as a “little foyer”

with “four or five steps to go down and about four or five steps to go up.” When

the four officers entered the foyer, they saw “about three to four guys inside.”

Two were standing on the main landing, the man later identified as Gordon was on

the upward stairs, and the other individual was on the downward stairs. Officer

Whisnant testified that the whole building smelled like burnt marijuana, but that

the officers did not see any of the four individuals smoking it.

Once they smelled marijuana, the officers “made contact” with the four

individuals in the foyer. Officer Whisnant testified that he had previously

“stumbled upon individuals smoking in that hallway.” In speaking with Gordon,

Officer Whisnant did not inform him either that he was free to leave or that he

could refuse to speak to the officers. Officer Whisnant asked Gordon for his

identification to “figure out” who he was and where he lived. Gordon replied that

he did not live in the building and did not have physical identification. Gordon

told the officer, however, that his name was “Khalil Mikes.” He also provided his

date of birth and, in response to another inquiry, added that “he had been locked up

in Washington, D.C. before.”

4

Officer Whisnant thereupon entered Gordon’s proffered information into the

removable laptop from his squad car to “run him through the system,” which takes

“[a] matter of seconds” to return a result. But he “couldn’t pull him up.” The

officer further testified that when the police “can’t pull them up, more than likely,

they’re lying about their name.” Officer Whisnant acknowledged that he then “just

kept asking him about the spelling, is there anything—when he was locked up, did

he give another name, does he have a[n] alias or anything he goes by. And

eventually he gave [the officers] his real name.” Whereupon, the officer

continued, “We ended up pulling up his picture in one [data] system. And then we

ran him in WALES/NCIC and that revealed that he had a[n] outstanding warrant

for a probation violation.”3 Gordon was then placed under arrest.

Gordon was asked whether he had anything illegal on his person, and

Gordon replied that “he had some weed in his pants.”4 The officers ultimately

3

“[T]he Washington Area Law Enforcement System (WALES) . . . lists all

the active arrest warrants on file in the Superior Court’s Warrant Office.”

Woodward v. District of Columbia, 387 A.2d 726, 727 (D.C. 1978). “NCIC

[National Crime Information Center] is the primary nationwide database used by

law enforcement to determine whether any warrants have been issued for an

individual’s arrest.” United States v. Boone, 706 F. Supp. 2d 71, 76 n.2 (D.D.C.

2010).

4

It is unclear whether the officers arrested Gordon immediately after

determining that he had an outstanding warrant, or arrested him after he stated that

he had weed in his pants. Officer Whisnant’s PD-163 narrative and his in-court

(continued . . .)

5

found “eight small, clear zip-loc bags which all contained marijuana.” Officer

Whisnant acknowledged that Gordon did not consent to the search of his person,

but he added that Gordon was “free to leave and walk away.” The entire period

from the time Officer Whisnant asked Gordon for identification to the officer’s

discovery of the outstanding warrant lasted “[a]bout 10 minutes,” according to

Whisnant. The trial court credited Officer Whisnant’s testimony that, throughout

the entire encounter, the officers spoke in a calm voice and did not draw their

weapons.

Two days later, on March 7, Gordon was charged with unlawful possession

of marijuana.5 Counsel moved to suppress the marijuana and Gordon’s statements

to the police, arguing that the police had unlawfully seized his person without

reasonable suspicion. On May 20, following a suppression hearing, the trial court

denied the motion. The court found that the initial encounter with Officer

Whisnant, when he asked Gordon for his name, was “consensual,” and that “[i]t

was perfectly reasonable for the police to talk to [Gordon] a little bit more to try to

verify his identity” after Gordon apparently had provided a false name.

_______________________________________

(. . . continued)

testimony provide conflicting reports. Nothing in our analysis, however, turns on

the timing of Gordon’s arrest.

5

Gordon was charged under the 2001 version of the D.C. Code. See D.C.

Code § 48-904.01 (d) (2001).

6

Furthermore, added the court, while the officer was verifying Gordon’s identity,

Gordon “was not surrounded in a way that would have communicated to him, that

is, to a reasonable person innocent of any crime, that he wasn’t free to disengage

from the contact.” At the point the WALES search revealed that Gordon had an

outstanding warrant, the court concluded, “the police had probable cause to arrest

him and could search incident to that arrest.” Ultimately, the trial court ruled that

Gordon had not been “seized prior to [the officers’] learning about the warrant”;

thus, his “Fourth Amendment rights [were] not violated.”

Gordon then entered a conditional guilty plea, reserving his right to appeal

the denial of the motion to suppress. The court sentenced him to thirty days of

imprisonment, with credit for time served, to run concurrently with any sentence

that he was serving at the time of sentencing. The court also ordered Gordon to

pay $50 to the Victims of Crime Fund. This appeal followed.

II.

Gordon contends that he was seized by the police without reasonable

suspicion when the police repeatedly questioned him about his identity—an

encounter that lasted approximately ten minutes. The government contends, to the

contrary, that the officer’s questioning did not constitute a seizure, and that even if

7

it did, Gordon’s proffer of a false name, along with other suspicious circumstances,

created the required reasonable suspicion that justified the officers’ further pursuit

of the truth through an identity check and warrant search. Rejecting the

government’s argument, we conclude that the repeated questioning of Gordon for

“about ten minutes,” evidencing a show of authority, amounted to a seizure, and

that the officers lacked reasonable suspicion to justify the detention.

When reviewing a trial court’s ruling on a motion to suppress, we must

uphold the court’s findings of fact unless they are clearly erroneous, but we review

the court’s conclusions of law de novo.6 Gordon bears the burden of proving that

the police violated his Fourth Amendment rights.7 We consider the evidence in the

light most favorable to the government.8

The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .”9 There are three types of permissible

6

Porter v. United States, 7 A.3d 1021, 1024 (D.C. 2010).

7

See Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978).

8

See Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007).

9

U.S. CONST. amend. IV.

8

encounters between the police and citizens which do not violate the Fourth

Amendment: (1) consensual encounters, which do not require any level of

suspicion prior to initiation10; (2) investigative detentions, which if nonconsensual,

must be supported by a reasonable, articulable suspicion of criminal activity prior

to initiation11; and (3) arrests, which must be supported by probable cause prior to

initiation.12 Both investigative detentions and arrests are seizures under the Fourth

Amendment13; mere consensual encounters are not.14

Accordingly, a “seizure does not occur simply because a police officer

approaches an individual and asks a few questions.”15 Moreover, “the police also

may ask a person to do something, such as produce identification or an airline

10

Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v.

Mendenhall, 446 U.S. 544 (1980).

11

Florida v. Royer, 460 U.S. 491 (1983).

12

Illinois v. Gates, 462 U.S. 213 (1983).

13

Terry v. Ohio, 392 U.S. 1, 17 (1968) (declining to distinguish a “stop and

an arrest” from a seizure).

14

A police encounter with a suspect will be “consensual,” as a matter of

law, and thus not a “seizure,” if the suspect agrees (whether expressly so or not) to

answer police questions, unconstrained by physical force or a show of police

authority, and thus would reasonably believe that he was free to end the

questioning at any time and leave. See generally Kentucky v. King, 131 S. Ct.

1849, 1858 (2011).

15

Bostick, 501 U.S. at 434.

9

ticket, without necessarily converting the encounter into a seizure.”16 Thus, a

seizure will have occurred “[o]nly when the officer, by means of physical force or

show of authority, has in some way restrained” someone’s liberty.17 It follows,

according to the Supreme Court, that the test for determining whether a person has

been seized “is whether, taking into account all of the circumstances surrounding

the encounter, the police conduct would have communicated to a reasonable

person that he was not at liberty to ignore the police presence and go about his

business”18—in other words, that he was “not free to leave.”19

The central question on the facts here divides into two parts: (A) whether

the police, by repeatedly asking Gordon questions about his identity for “[a]bout

ten minutes,” seized Gordon; and (B) if there was a seizure, whether the police had

reasonable suspicion to support it.

16

United States v. Barnes, 496 A.2d 1040, 1044 (D.C. 1985) (internal

citations omitted).

17

Terry, 392 U.S. at 19 n.16.

18

Bostick, 501 U.S. at 436-37 (internal quotation marks omitted).

19

Id. at 436; United States v. Mendenhall, 446 U.S. 544, 554 (1980)

(opinion of Stewart, J.).

10

A.

First, we must assess whether, as Gordon contends, the police officer’s

repeated questioning about his identity, lasting about ten minutes, seized him prior

to the officers’ discovery of his outstanding warrant. The government replies that

the officer’s “mere questioning, in a calm and conversational tone in the public

area of a residential building, where Officer Whisnant never drew his weapon,

never took [Gordon’s] property and at no time conveyed a message that

compliance with his requests was required, did not constitute a seizure under the

Fourth Amendment.” Before addressing the parties’ contentions, we must examine

the development of this court’s doctrine explaining the relationship between the

persistence of police questioning and Fourth Amendment seizures.

(1)

This court has concluded on several occasions that repeated questioning can

convert a consensual police-citizen encounter into a seizure. In Guadalupe,

described as a case of “first impression,”20 this court addressed whether two

“successive police-citizen confrontations over a twenty-five to thirty minute period

20

Guadalupe v. United States, 585 A.2d 1348, 1352 (D.C. 1991).

11

. . . creat[ed] such an intimidating atmosphere that a reasonable person would

believe he or she was not free to leave.”21 We observed, without deciding, that the

first encounter, when appellant allowed the police at Union Station to search his

bag after he denied possessing narcotics,22 was arguably consensual.23 But after

finding no contraband, the police confronted him again, fifteen minutes later,

obtained consent for a body search, and found two packets of cocaine.24 We held

that a seizure occurred when the officers asked appellant to consent to the body

search, because a “reasonable person, under these circumstances, could do no less

than believe that the officers had focused their attention on him in furtherance of

their narcotics investigation, and the questions, concluding in a request to conduct

a body search, became accusatory in effect.”25 Appellant, in short, would not have

felt free to leave. Even though the police “were not in uniform, spoke politely, did

not display a weapon, and did not physically block a person’s passageway,” this

21

Id.

22

Id. at 1350.

23

Id. at 1357.

24

Id. at 1351.

25

Id. at 1360.

12

court was troubled, ultimately, by the persistent nature of the officers’ actions26—a

period in that case of twenty-five to thirty minutes.

Next, in Hawkins, this court held that repeated questioning by police

officers, in a single encounter, could amount to a seizure.27 The officers pulled

alongside appellant’s double-parked car, directed appellant to park (and at some

point asked him to turn off the ignition), and positioned themselves on either side

of his car, an action which conformed to their training for making a traffic stop.

They asked appellant three times about whether he had a weapon on him.28 Then,

without an affirmative answer, they removed him from his car, saw the butt of a

gun in his pocket, and placed him under arrest. This court agreed, with one judge

dissenting, that “the repeated questioning about the possession of a weapon

resulted in a seizure in violation of the Fourth Amendment.”29

26

Id. at 1360-61.

27

Hawkins v. United States, 663 A.2d 1221, 1226 (D.C. 1995) (opinion of

Mack, J.); id. at 1230 (Farrell, J., concurring in the judgment) (“At this point, I

cannot conceive that a reasonable person would not have understood the [third]

question as accusatory and that his freedom to go about his business depended on

giving satisfactory assurance to the officers that he was not carrying a gun.”

(citation and internal quotation marks omitted)).

28

Id. at 1224-26.

29

Id. at 1228 (opinion of Mack, J.); see id. at 1228-29 (Farrell, J.,

concurring in the judgment) (“[O]nce [Officer] Reynolds had asked appellant a

third time whether he was packing a gun, a reasonable person in appellant’s shoes

(continued . . .)

13

Later, this court in Jackson applied Guadalupe and Hawkins to a situation in

which a police officer, without reasonable suspicion, repeatedly questioned a man

standing in front of an apartment complex.30 The police had received an

anonymous call about him from a woman who reported that she feared for her

safety because there were a number of recent shootings in that area.31 Two police

officers drove up to the apartment complex in an unmarked police car and walked

over to appellant,32 inquired whether he had any drugs or weapons on him, and

asked him to raise his jacket.33 Without seeing drugs or weapons under his jacket,

the officers questioned appellant about how long “he had been there,” whether he

lived in the neighborhood, whether he was visiting anyone, and who that was.34

Then the officer, concerned for his safety (without any described provocation), told

_______________________________________

(. . . continued)

no longer would have believed himself free to ignore the question and end the

encounter with the officer.” (footnote omitted)).

30

Jackson v. United States, 805 A.2d 979, 982, 988 (D.C. 2002).

31

Id. at 982.

32

Id.

33

Id.

34

Id.

14

appellant to “please turn around for me.”35 As appellant turned, the officer’s hand

hit appellant’s jacket and felt, then retrieved, a gun.36 Reversing the trial court’s

denial of appellant’s motion to suppress, this court held: “the fact that the officer

remained unsatisfied and continued to question Jackson adds to the circumstances

that would convey to a reasonable innocent person that he was not going to be

permitted to leave until the officer was satisfied with his answers or found what he

was looking for.”37 The seizure occurred before the officer’s request for appellant

to turn around because the repeated questioning caused the encounter to cross “the

critical line between consent and coercion.”38

We believe that Gordon’s situation is similar to appellant Jackson’s. We

conclude that the officer seized Gordon by repeatedly questioning him before the

police learned of his outstanding warrant. We need not identify the exact moment

when the seizure occurred; the fact that it occurred at some point after Gordon

gave the name “Khalil Mikes,” but before the officers discovered Gordon’s

outstanding warrant, is sufficient for our analysis—as we shall elaborate.

35

Id.

36

Id. at 982-83.

37

Id. at 988.

38

Id.

15

(2)

Prior to the officer’s repeated questioning of Gordon about his identity, the

totality of the circumstances did not indicate that a seizure had occurred. The

officers pulled up to the building in an unmarked police vehicle, without flashing

lights. The plainclothes officers wore black tactical vests that displayed “Police”

on the front and back. In addition, the officers carried handcuffs, a baton, pepper

spray, and a gun, and entered the building through an unlocked front door.

Before questioning Gordon, the police spoke in a conversational tone, did not

block the exit, and separated the four individuals in the lobby such that none was

significantly outnumbered by the police. When Officer Whisnant initially

questioned Gordon, he asked only a few routine questions related to Gordon’s

identity: name, address, whether he lived in the apartment complex, and whether

he had previously been locked up. At this point, Gordon had not been seized; he

participated in a consensual encounter.39

After the first database search of Gordon’s first proffered name, “Kahlil

Mikes,” failed to return a result, however, the officers began repeatedly

39

See supra note 14.

16

questioning Gordon about his identity. Officer Whisnant acknowledged that he

then “just kept asking him about the spelling, is there anything—when he was

locked up, did he give another name, does he have a[n] alias or anything he goes

by. And eventually he gave [the officers] his real name.” As we have noted, the

entire period of time from when Officer Whisnant asked Gordon for identification

to the officer’s discovery of the outstanding warrant lasted, according to Whisnant,

“[a]bout ten minutes.”

Although we consider the totality of the circumstances when determining

whether a seizure occurred, we note as a preliminary matter that ten minutes of

questioning appears to significantly exceed the length of the police encounters in

both Hawkins and Jackson. Even on the thin record before us, it is apparent that an

individual in Gordon’s shoes, reacting reasonably, would feel restrained by police

authority and thus not free to leave. More specifically, the repeated questioning,

especially when combined with the computer database searches, would convey to a

reasonable person that the police were unsatisfied with his answers—to the point

that he would not be free to leave until the computer database returned a positive

result.40 In sum, we see the computer check as a factor that caused a material

40

See Ramsey v. United States, 73 A.3d 138, 147-48 (D.C. 2013)

(“However, the situation changed at the point when Officer Lally requested the

WALES check. At that point, we conclude, because appellant would not have felt

free to leave, the encounter became a seizure—for which Officer Lally no longer

(continued . . .)

17

acceleration of a conversation initially deemed consensual at law to a conversation

that reflected a seizure.

The government contends that this court’s decision in Brown compels a

different result, but we are not persuaded.41 In Brown, the officers, wearing vests

with the word “Police” written on the front but with their guns holstered,

approached a group of five to six individuals standing on the sidewalk.42 An

officer “stopped approximately two or three feet behind appellant and, speaking in

a normal tone, without . . . making any threatening gesture, asked, ‘Do you have

any guns, drugs, or narcotics on you?’”43 After appellant provided a non-

responsive answer, the officer again repeated her question.44 At this point,

appellant reached into her purse and handed the officer a bottle containing

_______________________________________

(. . . continued)

had reasonable, articulable suspicion, for the reasons already discussed.” (footnote

omitted)); State v. Hall, 115 P.3d 908, 917 (Or. 2005) (“[W]e find it difficult to

posit that a reasonable person would think that he or she was free to leave at a time

when that person is the investigatory subject of a pending warrant check.”).

41

Brown v. United States, 983 A.2d 1025 (D.C. 2009).

42

Id. at 1025.

43

Id.

44

Id.

18

cocaine.45 This court cited Hawkins for the proposition that repeated questioning

could restrain an appellant’s freedom to leave if the “questioning certainly

appeared to convey that compliance with the question was required.”46 Ultimately,

we concluded that the fact the officer repeated her question to appellant only once

did not rise to the level of restraining a reasonable person’s freedom to leave.47

Repeating a question once is notably different from repeatedly questioning

Gordon about his identity for ten minutes. Moreover, the appellant in Brown

provided a non-responsive answer, so it was entirely reasonable for the officer to

ask her question again. Brown, therefore, differs from Johnson and Hawkins

because the appellants in these latter two cases provided responsive answers to the

officers’ questions. Neither was a case in which the suspect either misunderstood

the question or the officer could not understand the answer, arguably both of which

would have warranted a follow-up question; each reflected a situation in which

police officers were not satisfied with the appellants’ responses so they continued

their questioning. Absent reasonable suspicion, this questioning is the type of

conduct the Fourth Amendment is designed to prohibit, namely, repeated

questioning by the police that is accusatory in nature and would make reasonable

45

Id.

46

Id. at 1026 (internal alterations and quotation marks omitted).

47

Id.

19

persons believe they were not free to leave until the officers were satisfied. This

case presents that situation. Gordon answered Officer Whisnant’s questions,

although falsely, and Whisnant continued to question him for “about ten minutes”

in pursuit of an answer that would satisfy the officer: his real name. Because a

reasonable person in these circumstances would not feel free to leave, Gordon was

seized prior to the discovery of his outstanding arrest warrant.

B.

The government, however, contends that the police had reasonable suspicion

of criminal activity to justify a seizure. It observes in its brief that Officer

Whisnant and his fellow officers had seen several individuals (including Gordon)

apparently [1] “loitering” in the common area of an apartment building where

Gordon [2] “did not live”—a building that smelled of [3] “burnt marijuana” and

was located in a [4] “high crime area.” The government implicitly acknowledges

that these four quoted factors, taken together, did not create reasonable suspicion

of criminal activity, but it argues that such reasonable suspicion was justified when

Gordon himself supplemented those factors by [5] acknowledging that he “had

previously been arrested” (his lockup in D.C.) and [6] proffering a name that did

not turn up in the computer database that contained “anybody that’s been arrested”

(indicating a likely lie).

20

The government does not contend that Officer Whisnant’s awareness of the

fifth factor, Gordon’s earlier jail time, when added to the four numbered factors

quoted above from the government’s brief, was enough to trigger reasonable

suspicion. We agree with the government’s implicit concession that jail time for

an unspecified crime in the unspecified past is not enough to create reasonable

suspicion of criminal activity when added to Gordon’s presence among individuals

gathered in the public area of a building where he did not live (albeit in a high

crime area), and where the police smelled burnt marijuana but could not relate

Gordon or any of his compatriots to that unlawful activity. We turn, therefore, to

the government’s sixth factor: Gordon’s apparent lie.

This court’s decision in Anderson provides the best analysis for evaluating

reasonable suspicion here.48 In Anderson, police officers frisked the appellant and

found contraband. The government put forth the following facts to justify the

frisk:

(1) the area was a high crime area where drug

transactions take place; (2) appellant was standing with

another man in the backyard of a house on a[n] alley

48

Anderson v. United States, 658 A.2d 1036 (D.C. 1995).

21

during a cold winter night around midnight; (3) appellant

quickly walked away from the police; (4) neither

appellant nor the other man resided in the house; (5)

appellant denied that he had been in the backyard despite

being seen by the officers; (6) appellant placed his hands

back in his pocket after being asked to remove them; and

(7) appellant became nervous, rocked back and forth, and

got wide-eyed upon questioning.49

The officers knew that, in response to the officer’s question, appellant had lied,

saying he had not been present in the yard, because the officers had observed him,

a few minutes before, walking away from “the backyard of a house on an alley”

after observing the police car.50 This court ultimately found that these facts,

including the lie, did not create reasonable suspicion to justify the frisk.51

Anderson provides useful guidance because the facts there provide a more

compelling rationale for a seizure (though falling short) than the facts here. Of the

six factors the government cited as creating reasonable suspicion to detain Gordon,

three are essentially the same as factors in Anderson: Gordon was in a high crime

area, he did not live in the residence where he was seen, and the conduct could be

described as loitering. Three factors cited by the government in Gordon, however,

49

Id. at 1038.

50

Id. at 1037.

51

Id. at 1040.

22

differ from those relied on in Anderson: the smell of burnt marijuana, Gordon’s

prior conviction, and mere suspicion of a lie. First, even if we do not credit the

government’s concession that it did not have reasonable suspicion prior to

anticipating Gordon’s lie, the burnt marijuana is not sufficient to distinguish this

case from Anderson. Gordon’s loitering in the lobby of an apartment building that

smelled like burnt marijuana was less suspicious than Anderson’s walking away (at

midnight) from the backyard of a house where he did not live upon observing a

police car—especially when Anderson (unlike Gordon) was nervous and fidgety

upon being questioned by the police.52 Second, we have already observed that

Gordon’s jail time was not a significant factor. Finally, in Anderson, the police

actually knew that the appellant had lied, but in Gordon’s case, the police only

suspected that he had provided a false name before they questioned him further.

Accordingly, if Anderson did not manifest facts creating reasonable suspicion that

justified seizure, then surely the facts here afforded the police no reasonable basis

for seizing Gordon after he identified himself as Khalil Mikes.

In support of its argument that Gordon’s eventually revealed lie about his

name created reasonable suspicion, the government cites Illinois v. Wardlow,53 a

52

Id. at 1037.

53

528 U.S. 119 (2000).

23

decision in which the Supreme Court characterized “[h]eadlong” and “unprovoked

flight” in a high crime area as “evasive behavior” pertinent “in determining

reasonable suspicion.”54 The government would have us equate Gordon’s

“unprovoked prevarication” with Wardlow’s “unprovoked flight,” in order to

supply the additional factor necessary to justify reasonable suspicion in Gordon’s

case. We decline to do so since most of the questioning occurred before Gordon

disclosed his real name—enough questioning to result in a seizure before Gordon’s

lie had been confirmed (and immediately yielded the warrant). But even if (as the

government apparently would have it) mere suspicion of a lie under some

circumstances would be sufficient to justify a seizure, the Court’s decision in

Wardlow, addressing unprovoked flight, would supply no justification for a seizure

here.

The flight in Wardlow may have resulted merely from the suspect’s sighting

of the police, but the accosting officers observed more than flight; they saw the

suspect “holding an opaque bag” in “an area known for heavy narcotics

trafficking.”55 Unprovoked flight, when coupled with concrete evidence (the bag)

consistent with narcotics transactions, together warranted the seizure. In our case,

however, Gordon gave a suspected false name under circumstances otherwise

54

Id. at 124-25.

55

Id. at 121-22.

24

lacking concrete evidence of criminal activity. True: a lie can reflect

consciousness of guilt; indeed, perhaps guilt underlay Gordon’s initial response to

Officer Whisnant. But a lie can also reflect merely that the person stopped is

afraid of the police.56 Accordingly, we cannot say that Gordon’s initial

dissembling—confirmed only after almost all the ten-minute questioning—could

have erased all significance of the prior questioning and served to create the

reasonable suspicion that would have justified his seizure.

For all the foregoing reasons, we conclude that Gordon was unlawfully

seized without reasonable suspicion. We can confidently say that the repeated

questioning seized Gordon prior to the discovery of his outstanding warrant.57

56

See generally City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311,

313 (Tenn. 2007) (“S.B. was afraid of official involvement, afraid of going to a

foster home, and afraid of police in general who might force her into a possibly

more dire situation.”) (citation and internal quotation marks omitted); State v.

Bogdanoff, 585 P.2d 602, 604-05 (Haw. 1978) (“[H]e was afraid of (Police

Detective) Bobby Schmidt[,] and . . . he was going to lie if he ever was asked

under oath about what he said in the letters because of his fear of Bobby

Schmidt.”).

57

We need not answer the broader question whether a police database

search as such, absent reasonable suspicion, constitutes a per se seizure. See, e.g.,

Ramsey v. United States, 73 A.3d 138, 148 (D.C. 2013) (WALES check, without

reasonable suspicion, was a seizure under circumstances); United States v. Gross,

662 F.3d 393, 401 (6th Cir. 2011) (seizure even though police did not retain ID

requested of suspect); State v. Hall, 115 P.3d 908, 917 (Or. 2005) (seizure, under

Oregon law, even when ID promptly returned to suspect after radioing police

dispatch for a warrant check but before receiving result); State v. Painter, 676 P.2d

309, 311-12 (Or. 1984) (en banc) (seizure, under Oregon law, when police retained

(continued . . .)

25

III.

We turn, finally, to whether Gordon’s statements to the police and the Ziploc

bags of marijuana found on his person must be suppressed. As a general rule, if a

police officer’s actions violate the Fourth Amendment, “the indirect fruits of an

illegal search or arrest should be suppressed when they bear a sufficiently close

relationship to the underlying illegality.”58 If an unlawful seizure occurred, the

exclusionary rule applies unless the government proves that “the unlawful conduct

has become so attenuated or has been interrupted by some intervening

circumstances so as to remove the ‘taint’ imposed upon that evidence by the

original illegality.”59 According to the Supreme Court, first in Brown v. Illinois,

relevant considerations include “the temporal proximity of the [seizure] and the

[discovery of contraband], the presence of intervening circumstances, and,

_______________________________________

(. . . continued)

ID during warrant check); State v. Warner, 585 P.2d 681, 684, 690-91 (Or. 1978)

(en banc) (seizure, under Oregon law, by show of authority when police asked

defendant to place ID on table and advised defendant that he was subject of

criminal investigation). But see People v. Graves, 553 N.E.2d 810, 813 (Ill. App.

Ct. 1990) (“Nor was the deputy’s running a driver’s license check, under these

circumstances, a seizure.”).

58

New York v. Harris, 495 U.S. 14, 19 (1990).

59

United States v. Crews, 445 U.S. 463, 471 (1980).

26

particularly, the purpose and flagrancy of the official misconduct.”60 We find no

such attenuation or intervening circumstances here.

In attempting to avoid suppression under the exclusionary rule, the

government argues that the outstanding arrest warrant was an intervening event

sufficient to purge the taint of the illegal seizure.61 We cannot agree. Applying

Brown’s three criteria,62 we perceive no attenuating or intervening event that would

trump the Fourth Amendment violation here. We observe that virtually no time

passed between the illegal seizure and the discovery of the warrant; there were no

intervening circumstances other than the discovery of the arrest warrant after the

unlawful seizure; and although the illegality was not flagrant, the officer’s purpose

at the time of the seizure—to check Gordon’s identity through computer databases

60

Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (footnote and internal

citations omitted).

61

In making this argument, the government relies on Harris, 495 U.S. at 14.

There the Court held that if “the police have probable cause to arrest a suspect,”

and unlawfully enter his home to do so, “the exclusionary rule does not bar the

State’s use of a statement made by the defendant outside of his home” after his

arrest. Id. at 21 (limiting Payton v. New York, 445 U.S. 573 (1980)). In the

present case, however, unlike the officers in Harris, the police who committed the

illegality were unaware of any probable cause (the arrest warrant) at the time they

seized Gordon; indeed, they lacked even reasonable suspicion to justify their

actions. See Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004) (justification for

seizure is based on “facts known to the arresting officer at the time of the arrest”).

62

Brown, 422 U.S. at 603-04.

27

that include information about warrant status—weighs in favor of suppression.63

Accordingly, Gordon’s statements to the police and the tangible evidence

immediately found on his person as a result of that search must be suppressed.

63

See United States v. Gross, 662 F.3d 393, 404-05 (6th Cir. 2011)

(discovery of valid arrest warrant—while relevant under Brown analysis—was

insufficient under circumstances to attenuate prior unlawful seizure; “[t]o hold

otherwise would create a rule that potentially allows for a new form of police

investigation, whereby an officer patrolling a high crime area may, without

consequence, illegally stop a group of residents where he has a “police hunch” that

the residents may: 1) have outstanding warrants; or 2) be engaged in some activity

that does not rise to a level of reasonable suspicion.”); State v. Moralez, 300 P.3d

1090, 1094, 1100-03 (Kan. 2013) (court ordered suppression of marijuana seized

from suspect; police behavior in stopping suspect for a warrants check, without

reasonable suspicion of criminal activity, was too “flagrant,” under Brown

attenuation analysis, to allow the warrant to purge the taint of police illegality);

State v. Bailey, 338 P.3d 702, 715 (Or. 2014) (en banc) (“For purposes of the

federal exclusionary rule, the effect of [the purposeful police conduct], when

considered along with the temporal proximity between the unlawful detention and

the discovery of the challenged evidence, outweighs any value that otherwise

might be assigned to the subsequent discovery of a valid arrest warrant.”); see also

United States v. Lopez, 443 F.3d 1280, 1286 (10th Cir. 2006) (affirmed district

court order granting suppression of outstanding warrant—without reference to

Brown factors—because government conceded that police “did not have probable

cause or reasonable suspicion to detain Lopez until the warrants check was

completed”); United States v. Luckett, 484 F.2d 89, 91 (9th Cir. 1973) (per curiam)

(“Because [police] had no reasonable grounds to be suspicious that there might be

a warrant outstanding against him,” the court held, in a pre-Brown ruling, that

“detention was unreasonable, and its fruits, therefore, were properly suppressed by

the district court.” (internal citation omitted)). But cf. United States v. Green, 111

F.3d 515, 521 (7th Cir. 1997) (“It would be startling to suggest that because the

police illegally stopped an automobile, they cannot arrest an occupant who is found

to be wanted on a warrant—in a sense requiring an official call of ‘Olly, Olly,

Oxen Free.’ Because the arrest is lawful, a search incident to the arrest is also

lawful. The lawful arrest of Avery constituted an intervening circumstance

sufficient to dissipate any taint caused by the illegal automobile stop.”).

28

*****

For the foregoing reasons we reverse the order denying Gordon’s motion to

suppress, vacate his guilty plea, and remand the case for further proceedings

consistent with this opinion.

So ordered.